Himachal Pradesh High Court
Tek Ram & Others vs Amit Singha And Others on 18 July, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1 2025:HHC:23379
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No.2 of 2014 with FAO No.3 of 2014
Reserved on: 25.04.2025
.
Date of Decision: July 18, 2025
1. FAO No.2 of 2014
Tek Ram & others ....Appellants.
Versus
Amit Singha and others ..Respondents.
2. FAO No.3 of 2014
Tek Ram & others
r to Versus
....Appellants.
Amit Singha and others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Appellants: Mr.Naveen K. Bhardwaj, Advocate, for the
appellants in both appeals.
For the Respondents: Respondent Nos.1 and 2 are ex parte in
both appeals.
Mr.Jagdish Thakur, Advocate, for
respondent No.3 in both appeals.
Vivek Singh Thakur, J.
In these two appeals, a common Award dated 07.11.2013 passed by Motor Accident Claims Tribunal, Kullu, District Kullu, H.P., in Claim Petition No.5/2010 (53/13, 93/13), titled as Tek Ram and others vs. Amit Singha and others; and 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 21/07/2025 21:19:18 :::CIS
2 2025:HHC:23379 Claim Petition No.6/2010 (67/13, 94/13), titled as Tek Ram and others vs. Amit Singha and others, has been assailed by some set of claimants whose petitions preferred under Section 166-A .
of the Motor Vehicles Act (hereinafter referred to as the 'M.V. Act'), for getting compensation on account of death of their parents, i.e. father-Nirat Ram and mother-Bimla Devi, have been dismissed.
2. Claimants at the time of filing petitions were minors and they preferred claim petitions through their real Mama (Maternal Uncle) Duni Chand.
3. Respondents No.1 and 2, herein are owner and driver respectively of the vehicle-Tanker No.HR-68-7481. Respondent No.3 is Insurance Company of the Tanker.
4. As per claim petitions, on 14.07.2009 at about 8.20 a.m., Nirat Ram and his wife Bimla Devi were coming back to their home from the house of their eldest daughter Geeta on Scooter No.HP-34A-2341. When they reached near Jhiri Filling Station in District Mandi, H.P., one Tanker bearing registration No.HR-68-7481, owned by respondent No.1 and being driven by respondent No.2, came from behind in a rash and negligent manner at a high speed and tried to overtake the Scooter. In the meantime, another vehicle came from opposite direction and respondent No.2, in order to give pass to the said vehicle hit the Tanker against Scooter, resulting into fall of Scooter alongwith riders, causing injuries to them, to which they succumbed before reaching S.R. Hospital, Kalechali. Lateron, dead bodies of ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 3 2025:HHC:23379 deceased were subjected to postmortem in Regional Hospital, Kullu.
5. In Police Station Aut, on the basis of information .
received telephonically, SHO Sureshtha Thakur made an entry in Rapat No.6 dated 14.07.2009 at 8.30 a.m. regarding the said telephonic information of the accident, stating that some unknown person had informed the Police Station through phone that near Jhiri a Tanker driver (Tanker Wala) had hit a Scooter, with a request to send the police on the spot ( की झिरी के पास किसी टैं कर वाले ने स्कू टर को टककर मार दी है मौके पर पु लिस भे जी जाये ).
6. It has been claimed by the claimants that Nirat Ram was Mason by profession and was earning `200 per day as a Mason and he was also doing agricultural pursuit and his total monthly income was `9000/-. Whereas, Bimla Devi was claimed to be earning `6000/- per month as a Labourer and was doing agricultural work.
7. Both claim petitions were tagged together with consent of the parties vide order dated 18.08.2011. Thereafter, following common issues were framed:-
"1. Whether Nirat Ram and Smt. Bimla Devi expired in a motor vehicle accident due to rash and negligent driving of respondent No.2, who was driving tanker No.HR-68-7481 as alleged? OPP
2. Whether the petition is bad for non joinder of necessary parties? OPR 1 and 2
3. Whether respondent No.2 was not holding valid and effective driving licence at the relevant time? OPR-3 ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 4 2025:HHC:23379
4. Whether the vehicle involved in the accident has been plied in contravention of provision of M.V. Act and without validi documents as alleged? OPR-3
5. Whether the petitioners are entitled for .
compensation, if so, to what amount and from whom? OPP
6. Relief."
8. Claimants had examined seven witnesses and relied upon documents, i.e. PW.1/A and PW.5/A postmortem reports of Nirat Ram and Bimla Devi, Ex.PW.2/A Rapat No.6 dated 14.07.2009.
9.
placed reliance
statement under
r upon
Section
Respondents had examined four witnesses and had Ex.RW.1/A 154 copy Cr.P.C., of FIR, Ex.RW.3/B Ex.RW.2/A copy of Insurance Policy, Ex.RW.3/C copy of Registration Certificate, Ex.RW.3/D payment of passengers tax, Ex.RW.3/E Token tax, Ex.RW.3/F, Ex.RW.3/G certificates of fitness, Ex.RW.3/H, Ex.RW.3/J, Ex.RW.3/K, Ex.RW.3/L copies of National Permit, Ex.RW.3/M and Ex.RW.3/N copies of Driving Licence.
10. No evidence was led by respondent No.3-Insurance Company despite availing five opportunities. Therefore, vide order dated 21.10.2013, passed by MACT, evidence of respondent No.3-Insurance Company was closed by order of the Court.
11. After appreciating the evidence on record, MACT decided issue No.1 against the claimants with observations that statement of PW.3 was not trustworthy and reliable, whereas, evidence led by the respondents was specific to reveal that ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 5 2025:HHC:23379 accident in question took place due to rash and negligent driving of deceased Nirat Ram and, accordingly, claim petitions were dismissed.
.
12. I have heard learned counsel for the parties and have also gone through the record.
13. For adjudication of present appeals, following observations of the Apex Court in N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and others, (1980) 3 SCC 457, would be relevant:-
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no- fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 6 2025:HHC:23379 injustice of delayed justice. Many States are unjustly indifferent in this regard."
14. The Supreme Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others, (2009) 13 SCC .
530, has held as under:-
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-a-vis the averments made in a claim petition.
12. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos.2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored.
14. Some discrepancies in the evidences of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 7 2025:HHC:23379 or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos.2 .
and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
15. The Supreme Court in Parmeshwari vs. Amir Chand and others, (2011) 11 SCC 635, has held as under:-
"12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh-PW.1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the Doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others, (2009) 13 SCC 530 are very pertinent.
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 8 2025:HHC:23379 claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.""
16. In Mangla Ram vs. Oriental Insurance Company .
Limited and others, (2018) 5 SCC 656, after referring judgments in Bimla Devi's and Parmeshwari's cases, the Supreme Court has restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside. Further that evidence of a witness having extended help to the victim cannot be disbelieved only for the reason that he did not file complaint himself.
17. In Sunita and others vs. Rajasthan State Road Transport Corporation and others, (2020) 13 SCC 486, after referring aforesaid pronouncements of the Supreme Court, it has been held as under:-
"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.::: Downloaded on - 21/07/2025 21:19:18 :::CIS
9 2025:HHC:23379
23. In the present case, we find that the Tribunal had followed a just approach in the matter of appreciation of the evidence/materials on record. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the .
well considered judgment of the Tribunal in a cryptic manner."
18. In the petition, it has been specifically stated that accident took place when respondent No.2, driving the Tanker in a rash and negligent manner, was overtaking the Scooter being driven by Nirat Ram and during that process, while giving way to another vehicle coming from opposite side, Tanker hit the Scooter. It has further been stated that FIR was wrongly and falsely registered against deceased Nirat Ram. To substantiate this plea, reliance has been placed on Rapat No.6 dated 14.07.2009 (Ex.PW.2/A).
19. In response filed by respondent No.1, all the facts have been denied with preliminary objections that petitioner had suppressed true and material facts and had not approached the Court with clean hands and petition was bad for non joinder of necessary parties and claim petition was not properly instituted and constituted. Apart from it, averments made in the petitioner were denied in simplicitor for want of knowledge without filing any response. It was also not disclosed that what material was suppressed, who were other necessary parties and how claim petition was not properly instituted and constituted.
20. In response by respondent No.2, similar preliminary objections, like respondent No.1, have been taken. Averments ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 10 2025:HHC:23379 made in the claim petition have been denied with a counter statement that accident took place due to rash and negligent driving of the Scooter. To substantiate this plea, reliance has .
been placed on FIR registered against Nirat Ram Ex.RW.1/A.
21. Apart from above, in reply on behalf of respondent No.2 to sub para 10 of paragraph 3 of the petition it has been stated as under:-
"... ... ...True facts are that the deceased was driving the scooter in rash and negligent manner and hit the tanker of the respondent No.2 on its backside while the respondent no.2 was giving pass to the another vehicle."
22. The same thing has been reiterated in reply to paragraph 3(21), 3 (24), (i), (iii) and (v).
23. In reply filed by respondent No.3, liability of Insurance Company has been denied on various grounds, including raising objection that Nirat Ram was not possessing valid and effective driving licence and valid documents of the Scooter at the time of alleged accident, and vehicle-tanker was being plied by a person who was not possessing any valid and effective driving licence, and owner of the vehicle was also not possessing any valid documents, and Tanker was being plied in contravention of M.V. Act as well as contract of Insurance Policy and, therefore, it was stated that in case any compensation was payable to the claimants, the same shall be payable by owner and driver of the Tanker. It was also claimed that accident took place on account of rash and negligent driving of Nirat Ram by placing reliance on FIR lodged against him. ::: Downloaded on - 21/07/2025 21:19:18 :::CIS
11 2025:HHC:23379
24. PW.1 Dr.Rajesh Bodh and PW.5 Dr.Rajesh Thakur had conducted postmortem of respective dead bodies of Nirat Ram and Bimla Devi. In cross-examination, PW.1 Dr.Rajesh Bodh, has .
refuted the suggestion of the respondents that such type of injuries sustained by the deceased can be inflicted due to fall. Dr.Rajesh Bodh opined that deceased Nirat Ram died due to coma and haemorrhagic shock due to head injury and ruptured liver ultimately leading to cardio pulmonary arrest.
25. PW.5 Rajesh Thakur opined that deceased Bimla Devi died as a result of head injury.
r The only question put to Dr.Rajesh Thakur in cross-examination is that in the record except postmortem report, there is no other document available with respect to Bimla Devi. There is no suggestion to either of the Doctor that death was not possible in the accident. In fact, death of Nirat Ram and Bimla Devi is an admitted fact. The only defence is that Nirat Ram was rash and negligent in driving the Scooter causing accident leading to death of self and his wife.
26. PW.2 HHC Suresh Kumar No.219, Police Station Aut, has proved Rapat No.6 dated 14.07.2009 as Ex.PW.2/A being true and correct copy of original of Rapat record produced by him in the Court. This witness has not been cross-examined. Therefore, Rapat No.6 has not been disputed.
27. PW.3 Hira Lal has been examined as a witness/being a person who informed the police on the basis of which Ex.PW.2/A was recorded by SHO Sureshtha Thakur and HC Dhani Ram No.6 alongwith Constable Ashok Kumar No.414 was ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 12 2025:HHC:23379 deputed to rush to the spot. In his examination-in-chief, he, by way of affidavit Ex.PW.3/A, has specifically stated that on 14.07.2009 when he was coming on his Scooter from Nagwain to .
his home Hathithan and reached near Jhiri Petrol Pump, a Scooter No.HP-34A-2341 was going on his own side in a slow speed and a Tanker No.HR-68-7481 came from back side of the Scooter in a rash and negligent manner and while overtaking the Scooter, hit the Scooter causing fall of Scooter riders alongwith Scooter on the road and leading to serious injuries and unconsciousness to the Scooter riders.
28. Tanker driver tried to flee away from the spot, but persons in the passersby vehicles had caught him and he (PW.3) had informed the police telephonically in this regard. A vehicle crossing from the spot had taken both injured persons to the Hospital. He has further stated that accident took place on account of rash and negligent driving of the Tanker driver. In his cross-examination, he has reiterated that accident took place on account of rash and negligent driving of Tanker driver with claim that he could identify the driver having produced before him. He has denied that he was not on the spot and did not make any telephonic call to the police. He was a summoned witness who was not knowing Nirat Ram personally, but came to know about Nirat Ram from his relative Duni Chand, when he visited the house of Duni Chand known to him. He was not acquaintance with Tek Ram claimant. He has categorically stated that he had made a call to police from his own phone bearing No.94185- ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 13 2025:HHC:23379 43299 by making a call on phone 01905-228028. He has also stated that neither police had asked his name nor he had disclosed the same. He has further stated that before reaching .
the police on the spot he had left the spot.
29. PW.4 Hukam Chand has placed on record his examination-in-chief in the shape of affidavit Ex.PW.4/A, wherein he had stated that on 14.07.2009 no accident occurred in his presence near Petrol Pump Jhiri nor he had lodged FIR in Police Station Aut on that day. It is claim of the respondents that PW.4 Hukam Chand had made a Statement under Section 154 Cr.P.C. Ex.PW.2/A to HC Dhani Ram No.25, who came on the spot after receiving telephonic information in Police Station and he had stated that accident took place on account of rash and negligent driving of Nirat Ram. Accordingly, FIR Ex.RW.1/A was registered against Nirat Ram. In cross-examination, he has denied that Nirat Ram driving the Scooter rashly and negligently had hit the Tanker from back side. He has also stated that neither he lodged FIR No.102 of 2009 nor made any statement to the police. According to him, he was never called by the police in this case.
30. PW.6 Duni Chand has placed on record his examination-in-chief in the shape of affidavit Ex.PW.6/A, wherein from the details of accident he has stated that Nirat Ram was earning `200.0 per day as a Mason and was also doing agricultural pursuit and his total additional income was `9000/- and Bimla Devi was earning `6000/- per month by working as a labourer and from agricultural work.
::: Downloaded on - 21/07/2025 21:19:18 :::CIS
14 2025:HHC:23379
31. PW.6 Duni Chand has also stated that claimants have also suffered pain and suffering, deprivation of love and affection, care and custody on account of death of their parents .
and they are facing mental shock and agony on account death of their parents at this young age.
32. So far as manner of accident is concerned, PW.6 is hearsay evidence and he was not present on the spot, therefore, his submission with respect to cause of death of accident is not primary evidence. In cross-examination, he has stated that he did not know that income of deceased Nirat Ram was `9000/-, but self stated that he was earning `200/- as a daily as a Mason. He has also admitted that work of Mason was available sometimes and sometimes Nirat Ram remained without work. He has also expressed ignorance about that Bimla Devi was working as a labourer. He has stated income of Bimla Devi as `6000/- as it was his idea that she was earning the said amount.
33. PW.7 Geeta Devi is eldest daughter of Nirat Ram, who was married before the death her parents. She has placed on record her examination-in-chief on affidavit Ex.PW.7/A. Like PW.6 Duni Chand, she was also not present on the spot and, thus, her statement with respect to cause and manner of accident is hearsay evidence not primary evidence and may not be so much relevant for determining cause and manner of the accident. With respect to earning of her parents, she has reiterated the facts and quantum of income as has been stated by PW.6 Duni Chand. In cross-examination, she has stated that ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 15 2025:HHC:23379 she was told by the Advocate that her father was earning `200/- daily and `9000/- per month. She has also admitted that sometimes work of Mason was available and sometimes it was .
not available.
34. RW.1 HC Dhani Ram No.25 has been examined twice, i.e. as RW.1 on 09.10.2012 and RW.4 on 15.03.2013. It is also noticeable that there is no order to recall him and re-examine him as RW.4 after examining him as RW.1 on 09.10.2012. On 09.10.2012 he has stated that on 14.07.2009 at about 8.20 a.m. an information was received in Police Station regarding accident between Tanker and Scooter, whereupon, SHO had deputed him alongwith Constable Ashok Kumar to visit the spot. On reaching the spot, he found a Scooter No.HP-34A-2341 lying behind the Tanker No.HR-68-7481. Hukam Chand present on the spot had made a statement under Section 154 Cr.P.C. to him and had also signed the said statement and this witness had also put his signatures attesting the same on the basis of which FIR No.102 of 2009 was registered under Section 279, 337 and 304A IPC, copy whereof is Ex.RW.1/A.
35. In cross-examination, HC Dhani Ram had admitted that in the FIR there were no signatures of Hukam Chand, but he had stated that signatures were there in the statement recorded under Section 154 Cr.P.C. He had admitted the telephonic information received in the Police Station, regarding accident and recording Rapat No.6 Ex.PW.2/A. He had stated that ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 16 2025:HHC:23379 according to the spot, Scooter driver had hit the Tanker from the back side with high speed.
36. Appearing again as RW.4, HC Dhani Ram No.25 had .
stated that in present case, he had registered FIR No.2 of 2009. Copy whereof, is Ex.RW.1/A, which was recorded on the basis of statement of Hukam Chand under Section 154 Cr.P.C., which was written by him and copy whereof, was Ex.PW.2/A and it was signed by Hukam Chand which was attested by him. In his investigation, it was found that accident occurred on account of mistake of Scooter driver.
r In cross-examination, though in previous statement, while appearing as RW.1, he had admitted receipt of telephonic information and registration of Rapat in the Police Station after receiving the said information, but appearing as RW.4, he had denied recording of any Rapat in Police Station Aut after receiving information that Truck had hit the Scooter. On confronting by putting him copy of Rapat Ex.PW.2/A, he did not accept the said fact, but only stated that report may be of his Police Station. He has also denied that both Scooter riders had died in accident. He has expressed his ignorance about the fact that Tanker driver was apprehended by public, who was trying to flee from the spot and he was thrashed.
37. Testimony of HC Dhani Ram No.25, does not inspire confidence for the reason that how and in what circumstance and for what reason he again appeared in the matter as RW.4 to depose in the Court as a witness of the respondents. In statement dated 09.10.2012, he had stated in examination-in- ::: Downloaded on - 21/07/2025 21:19:18 :::CIS
17 2025:HHC:23379 chief that information was received in Police Station at 8.20 a.m. on 14.07.2009 and accepted in cross-examination, recording of Rapat Ex.PW.2/A in this regard, but as RW.4 he has categorically .
denied recording of such Rapat in Police Station Aut. As RW.1, he had stated that he registered FIR No.102 of 2009, whereas, as RW.4 he stated that he had recorded FIR No.2 of 2009. As RW.4, he has categorically stated that in Ex.PW.2/A, Hukam Chand had put his signatures. Ex.PW.2/A is Rapat No.6 which bears signatures of none except reference of SHO who recorded information and this information was not given by Hukam Chand, but by PW.3 Hira Lal.
38. It is also apt to notice that on one hand HC Dhani Ram has claimed that he was Investigating Officer deputed in present case, but on the other hand he is denying that both Scooter riders had expired in the accident. It is an admitted fact that both Scooter riders expired in the accident and their postmortem was conducted in sequel to application submitted by the police to the Doctors.
39. Driver Rakesh Kumar had appeared in the witness box as RW.3. He has placed on record Insurance Policy Ex.RW.3/B, Registration Certificate Ex.RW.3/C, copy of payment of passengers tax Ex.RW.3/D, copy of payment of token tax Ex.RW.3/E, certificates of fitness Ex.RW.3/F, Ex.RW.3/G, National permit Ex.RW.3/K, Ex.RW.3/L and driving licence Ex.RW.3/M and Ex.RW.3/N. He has not been cross-examined by the Insurance Company. In cross-examination, he has stated that it was wrong ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 18 2025:HHC:23379 to say that in the accident there was no fault on his part. This line in view of entire statement made by this witness appears to have been recorded incorrectly. Therefore, it is to be taken that .
he has claimed that there was no rash and negligent act on his part. The documents placed on record by him, including his driving licence have not been disputed by Insurance Company. Therefore, contrary to the pleadings in the reply filed by Insurance Company, respondent No.3-Insurance Company has admitted correctness of the documents produced and proved on record by RW.3 Rakesh Kumar.
r Insurance Company has not
examined any witness in the present matter. Therefore,
pleadings of the Insurance Company without any evidence on record to substantiate the same is of no use as pleadings without evidence cannot be considered and made basis for deciding the matter.
40. It is also settled principle of law that evidence led by parties must be in consonance with their pleadings and evidence led contrary to pleadings cannot be considered. Applying rule of divergence between pleading and evidence, any evidence contrary to pleading is to be ignored. No evidence can be looked into upon a plea which was never put forward. (See Siddik Mahomed Shah vs. Mt. Saran and others, AIR 1930 Privy Council 57(1)}. Considering this issue, the Apex Court in Janak Dulari Devi and another vs. Kapildeo Rai and another, (2011) 6 SCC 555, has held as under:-
::: Downloaded on - 21/07/2025 21:19:18 :::CIS
19 2025:HHC:23379 "9..........When what is pleaded is not proved, or what is stated in the evidence is contrary to the pleadings, the dictum that no amount of evidence, contrary to the pleadings, howsoever cogent, can be relied on, would apply......."
.
41. In view of above settled law, objections of Insurance Company with respect to plying of Tanker by the owner in contravention of contract of the Insurance Policy driven by unauthorized/incompetent person having no valid licence to drive the same, are not sustainable. Therefore, in case of fastening liability upon respondents No.1 and 2, it shall be duty of respondent No.3 to indemnify them by paying compensation to the claimants.
42. In Ex.PW.2/A and FIR Ex.RW.1/A there is mention of Head Constable Dhani Ram No.6. Constable Ashok Kumar accompanying Dhani Ram has not been examined. Though it is true that it is not quantity but quality of evidence, which matters, and each and every witness is not necessary to be examined, but with respect to veracity of statement of Dhani Ram apparent from the record and his two statements and not examining Constable Ashok Kumar becomes relevant having an adverse impact upon the case of the respondents.
43. MACT to arrive at a conclusion that Nirat Ram was rash and negligent in driving by relying upon statement of Dhani Ram, statement under Section 154 Cr.P.C. Ex.RW.2/A and conclusion of Investigating Officer that Nirat Ram was rash and negligent in driving. Reliance on statement of Dhani Ram, is ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 20 2025:HHC:23379 misconceived because veracity of Dhani Ram is doubtful, Hukam Chand who allegedly made statement under Section 154 Cr.P.C. appearing as PW.4, has denied occurrence of accident in his .
presence as well as recording of his statement under Section 154 Cr.P.C. and also for the reason that there was specific contrary information communicated to the police about hitting Scooter by the Tanker as recorded in Rapat No.6 Ex.PW.2/A.
44. First hand information by spot witness PW.3 Hira Lal as recorded by SHO is that Tanker had hit the Scooter. Therefore, MACT has wrongly concluded that there was sufficient evidence on record to show that Nirat Ram was rash and negligent in driving and hit the Tanker from behind.
45. Conclusion by MACT that PW.3 Hira Lal has not deposed about rash and negligent driving of Tanker driver, is also contrary to record as Hira Lal in his examination-in-chief, placed on record on affidavit Ex.PW.3/A, has made categorical statement with respect to manner in which accident took place and the said deposition is in consonance with stand taken in the claim petition. He has also stated in his examination-in-chief as well as in cross-examination that he had made a call to the police and Scooter riders were taken to the Hospital in a vehicle and, thereafter, he left the place before arrival of the police. He has disclosed his telephone number from which he had made a call to Police Station. His entire evidence, coupled with material on record, including Rapat Ex.PW.2/A, is inspiring confidence. ::: Downloaded on - 21/07/2025 21:19:18 :::CIS
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46. Observation of MACT that PW.3 Hira Lal did not stay on the spot till arrival of the police or not lodge FIR in the Police Station is not sustainable because it is but natural for a person .
not related to the victim or accused, to leave the spot without waiting for the police, particularly when there is no knowledge about time of arrival of the police on the spot especially when injured had been removed from the spot to the Hospital. In such eventuality, a normal person, even if he is a first informer to the police, would not stay on the spot.
47. As accepted by the MACT, in given facts and circumstances of the present case, it is not case of the respondents that even after arrival of the police during his presence on the spot, despite first informer to the police, PW.3 avoided investigation or did not make any statement to the police on the spot. Therefore, doubting veracity of this witness, on this count, is not sustainable.
48. It is also relevant to notice that manner in which accident took place stated in the claim petition and in the statement of PW.3 Hira Lal, is also substantiated from the reply of respondent No.2 driver of the Tanker, who has also appeared as witness as RW.3, but with only difference in stand with respect to rash and negligent driving. Tanker driver is claiming that Nirat Ram was rash and negligent, whereas, other material available on record, i.e. PW.3 Hira Lal and Rapat No.6 Ex.PW.2/A are indicating that it was Tanker Driver Rakesh Kumar who was negligent.
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49. In the given facts and circumstances with respect to the manner of accident, it can easily be visualized that when a Tanker is overtaking the Scooter then, definitely Scooter is aside .
the Tanker on its left side but not in front of it or behind it and in a course of giving way to vehicle coming from the opposite side the Tanker was to be driven towards its left side and in such a situation, definitely for rash and negligent driving, Tanker driver could not save the Scooter from hitting by the Tanker probably from rear portion of the Tanker. In the situation as surfaced on record from the material, in such an accident, Scooter would be lying behind the Tanker, but not ahead of it as the Tanker did not stop immediately after hitting the Scooter, but tried to flee from the spot. In such course, there is every possibility that Scooter, fell on ground, would be lying behind the Tanker.
50. From contents of reply filed by owner and driver, then deposition in Court and statement of Dhani Ram, it was surfaced that stand of driver is that at the time of accident Nirat Ram was driving Scooter rashly and negligently in speed and Tanker coming behind in normal speed was overtaking the Scooter and at that time while Tanker was giving pass to another vehicle Scooter hit the Tanker on back side of Tanker. This story is highly improbable as it is not possible that Tanker moving in slow/normal speed was taking over a fast moving Scooter. If Scooter was in high speed, then speed of Tanker taking over the Scooter shall be higher than fast moving Scooter. Further when Tanker was crossing the Scooter, it cannot be possible for ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 23 2025:HHC:23379 Scooter rider to hit the Tanker from behind unless Tanker had crossed the Scooter and Tanker Driver had suddenly applied the brake, but that is not the case of the respondents. Therefore, .
even in stand of respondent Driver, preponderance of probability lies in favour of plea of claimants.
51. It is also noticeable in present case that at the time of arrival of police only one side/party was present on the spot. Other side, i.e. riders of the Scooter had already been removed to the Hospital and had succumbed to their injuries before arriving the Hospital. In such situation, there was no one else available on spot to put forth the case of the Scooter riders. PW.4 Hukam Chand has categorically stated that he was never called by the police in the matter.
52. No other witness has been cited either by Dhani Ram or by the respondents to substantiate statement recorded under Section 154 Cr.P.C. Ex.RW.2/A. Whereas, claimants have succeeded in placing on record sufficient material to substantiate their stand at least proving preponderance of probability in favour of plea of claimants.
53. From the above discussion, I am of the considered opinion that MACT has committed a mistake by rendering perverse findings. Therefore, impugned Awards are not sustainable and claimants are entitled for compensation.
54. With respect to quantum, there is no sufficient evidence on record to substantiate the claim that Nirat Ram and Bimla Devi were earning `9000/- and `6000/- per month ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 24 2025:HHC:23379 respectively. It has also come on record that sometimes work was available and sometimes it was not available. In view of nature of the evidence on record with respect to income and .
earning of the deceased, I am of the considered opinion that compensation cannot be determined on the basis of claim put forth by the claimants with respect to earnings/income.
55. However, at the same time, it is also an admitted fact that Nirat Ram was having Scooter and was maintaining the same. Therefore, he was not jobless and a person without income. Bimla Devi, even if considered house wife, was also adding to the income by performing cumbersome job of house management particularly with five children.
56. Nothing has been placed on record to depict about the land, if any owned and possessed by Nirat Ram and Bimla Devi. Therefore, plea with respect to agricultural income is also not substantiated by leading cogent and reliable evidence.
57. However, it is apt to record that occupation of Nirat Ram as a Mason has not been disputed generally or specifically, therefore, he was a skilled person. Thus, income of Nirat Ram is to be calculated by treating him as a skilled labourer/person. It has also come on record that work was not available at every time.
58. In the light of aforesaid discussion and material, it would be appropriate to consider that for at least 20 days in a month work was available. `200/- daily for a skilled labourer in the year 2009 is not excessive or exaggerated. Similarly, ::: Downloaded on - 21/07/2025 21:19:18 :::CIS 25 2025:HHC:23379 contribution of Bimla Devi in doing household work can be considered at least as `100/- per day, i.e. `3000/- per month and income of Nirat Ram as `4000/- plus contribution towards .
domestic work @ `1000/-, total `5000/- per month.
59. Number of dependents in family are 4, therefore, 1/4th is to be deducted for calculating loss of dependency. Age of Nirat Ram was 35 years and that of Bimla Dewi was 32 years, therefore multiplier of 16 shall be applicable to Nirat Ram and Bimla Devi.
60. Applying judgment of the Apex Court passed in National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680; and Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram & others, (2018) 18 SCC 130, the claimants are entitled for the claim in following terms:-
Nirat Ram Bimla Devi
Monthly `5,000/- `3,000/-
Income
1/4th Deduction 5000x25% =`1,250/- 3000x25% =`750/-
Monthly Loss 5000-1250 =`3,750/- 3000-750=`2,250/-
of Dependency
Annual Loss 3750x12 =`45,000/- 2250x12=`27,000/-
Total Loss with 45000x16=`7,20,000/- 27000x16=`4,32,000/-
multiplier of 16
Additional for 720000+40%=`10,08,000/- 432000+40%=`6,04,800/-
future
prospects
Income @40%
(self-
employed)
Loss of 40000x4=`1,60,000/- 40000x4=`1,60,000
Consortium
@40,000 to
each claimant
Loss of Estate `15,000/- `15,000/-
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Funeral `15,000/- `15,000/-
Expenses
Total 10,08,000+1,60,000+ 6,04,800+1,60,000+
Compensation 15,000+15,000 15,000+15,000
.
= `11,98,000/- = `7,94,800/-
61. In present case, annual income of the deceased is falling in the slab for which no income tax was payable. Therefore, no tax is deductible.
62. For evidence on record, respondents No.1 and 2 shall be jointly and severally liable to pay compensation to the claimants in both the appeals, i.e. `7,94,800/- in FAO No.2 of 2014 and `11,98,000/- in FAO No.3 of 2014 and respondent No.3- Insurance Company shall be liable to indemnify respondents No.1 and 2 by making payment to the claimants in aforesaid terms. The same shall be deposited in the Court on or before 30.08.2025 alongwith interest from the date of filing of petition till payment of compensation @ 6% per annum.
63. Appeals are allowed and disposed of in aforesaid terms, so also pending application(s), if any.
(Vivek Singh Thakur), Judge.
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